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04 November 2010

KingCast laughs as arrogant U.S. Senator Kelly Ayotte winds up facing NAACP v. Thompson and a Free Speech Federal Question Certification to SCOTUS; 2-4 years of litigation, I offered to settle.

Update: I'm understandably less-than thrilled that Judge McCafferty worked for thesame law firmas Defense Counsel Jennifer Parent, Defense Counsel Jack Middleton and Defendant Ayotte, crossover between Ayotte, Parent and Middleton. It appears that Her Honor left about a year before Kelly arrived, but we'll get that sorted when I file for full disclosure on Monday. As I say, I should have been informed of this so that I could make an informed judgment on the question of recusal, I may or I may not. I had to file a Motion for Recusal against Judge Lynn because he clearly gave me a Raw Deal. Again, whatever happens in this Court is hardly dispositive either way because of the Certifiable Constitutional Question noted below. It's going to SCOTUS.

Today's Nashua Telegraph coverage by Patrick Meighan. This case will be briefed before SCOTUS and Union Leader and WMUR will never mention it because they are corporate GOP shills and everybody knows it. More on this later but as noted in the Elena Kagan/SCOTUS - U.S. House post, you can see the conflict right here, with California, Colorado, Florida, Massachusetts and New Jersey holding that private shopping malls can become limited public fora. As you can see, folks in California, specifically at Stanford, are following. There has been recent (2007) Decisional Law supporting the KingCast position, contrary to the naked assertions of Defense counsel at yesterday's NH Superior Court hearing in KingCast v. Ayotte et al. 2010-CV-501.

Pruneyard on the wane, I think not: See this San Diego mall case,Fashion Valley Mall, LLC v. N.L.R.B.42 Cal.4th 850, 172 P.3d 742Cal.,2007, and NAACP v. Thompson, 648 F.Supp. 195 D.Md.,1986. And Kelly you better watch your step because by any measure I creamed you and your idiot cop friend Meshugana Marty Dunn (also busted for misrepresenting about me to the NH Supreme Court) when you stepped to me when I was NAACP Legal Chair in NH, you couldn't even follow the Rules of Civil Procedure. Best let your lawyers handle things now, but even they didn't accurately report the State of the Law to Her Honor on Election Day, so I lost my TRO Request. But now I'm back, with substantial merit my Senatorial friend.

Nor do plaintiffs challenge the Klan's right to hold private, members-only, segregated meetings on private property. Rather plaintiffs contend that the exclusion of individuals from a public rally on private property which is *203authorized by, and may not be held without, a county-issued permit, is unconstitutional.

Pruneyard at 81, 100 S.Ct. at 2040 (citations omitted)......

It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies. [KingCast notes: That is precisely the distinction he is making between Kay v. Bruno,821 f.2d 31 (1987), and his desire to merely be present and to gather news. A trip to SCOTUS does indeed loom large for Kelly & Crew.]

............But, “by choice of its owner,” the property was, on the occasion of each Klan rally, made “open to the public.” Having made that “choice,” the privateproperty owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own privateproperty as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group. A privateproperty owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his privateproperty to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain requirements upon him.[KingCast note: My offer of compromise did not include the Ayotte home. It was, and is, a valid attempt to balance private property rights against matters of public interest. That's because I know what the hell I am doing when it comes to the First Amendment, the name of the blog is the name of the game, folks. Wouldn't it now be hootlarious if SCOTUS determined that a publicly advertised rally at Kelly's house must be held open to me?]

If, as in Pruneyard and in Hudgens, a state or federal statute can require a shopping center owner to permit certain solicitation or picketing within the shopping center, then there would appear no federal constitutional barrier to Frederick County requiring the Klan to hold an open-to-all, non-racially, non-religiously discriminating, public rally on private property before issuing a permit. That view is supported, though probably not compelled, by Chief Justice Burger's comment in Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723] (1973):

That is almost precisely the case we have before us in New Hampshire. The Crown Plaza and the VFW may only operate because of State Action, including any and all appropriate licensing and permitting. As someone with experience as a wireless zoning manager I can tell you that much, natch.

***********

The Summary Judgment Argument is going to be hellified and as we know, I take no prisoners when it comes to oral advocacy, especially when I'm not sandbagged with Defendant's legal arguments 15 minutes before a damn hearing. Those guys go for the jugular, like a Martial Artist or Metaphysical Reductionist, I'll dodge it, take their power, foolishness and vituperative largesse, turn it on them and put them flat on the mat. This whole case is a thank you note to my favorite law professor of all time, Edward L. Mearns, a former Brown v. Board implementation attorney. His wife was Mayor of Shaker Heights, where I lived during law school. This in turn is Mearns' thank you note to his favorite professor Gregory.

Again, I am going to argue for a distinction such that publicly-advertised rallies are made open to reporters, but not to people who wish to take the stage (the Kay case Defendants submitted had a guy who wanted to actually get on the platform for Pete's sake!!!) because that would disrupt the flow of the program. In contrast, I only speak to people who are NOT on the stand or talking, and I wait my turn to ask questions until other media are finished, and I've got tons of raw footage to prove that. The Defendants asked for the raw footage, well they're going to get it, including the fact that I'm going to make former U.S. Marshal Steve Moniereat his words when he claims there was some credible reason to fear that I would bum rush Kelly Ayotte and somehow harm her or whatever, I am seen calmly standing on the sidewalk and responding to a Nashua Cop, Lieutenant John Fisher, who keeps bothering me and telling me to stay on the sidewalk when I had never once strayed from it. He was being a bully cop and chilling my First Amendment Rights, point blank. He even singled me out to discuss a beat-up car backing up when other white people were demonstrably closer to said vehicle and he said not one word to them. And I also bust Moiner on the fact that I was standing on the sidewalk when he threatened to call Manchester PD and have me arrested in Manchester at the Kelly Ayotte public Facebook rally. Watch it all right here, folks. In the hearing he tried to pretend he couldn't tell we were on the sidewalk, and he did further testify that the police did come.

The record will further reveal that I noted my attempt to resolve the matter without protracted litigation but Kelly Ayotte and the GOP are so gung-ho on keeping me from asking a couple of questions that what happens next is that the case that sits before Judge Landya Boyer McCafferty will soon (well, comparatively) cross the Certiorari threshold on the way to the bench with SCOTUS Justice Elena Kagan if I don't get my way in the NH Federal District Court. Her Honor is coincidentally in the midst of an awesome First Amendment violent game case now (hint: that law is about to be struck down, it is vague, overbroad and not narrowly tailored IMO) follows my tweets (link, with a nice Kelly Ayotte Official victory video).